Troubled Waters? Hospice and
Homecare Heightened Compliance
Concerns
Deborah A. Randall, J.D.
Health Attorney and Consultant
www.deborahrandallconsulting.com
Medicare, Medicaid, and CHIP Program
PPACA 2010 Integrity Provisions
• Sec. 6401. Provider screening and other
enrollment requirements.
• Sec. 6402. Enhanced Medicare and Medicaid
program integrity provisions.
• Sec. 6404. Maximum time for submission of
Medicare claims reduced to not > 12 month
• Sec. 6405. Physicians who order HHA/DME
required to be Medicare enrolled
INTEGRITY, cont.
• Sec. 6406. Physician documentation on
referrals at high risk of waste and abuse.
• Sec. 6407. Face to face encounter with patient
required if physicians certify HHA;?MORE
• Sec. 6408. Enhanced penalties.
• Sec. 6409. Medicare self-referral disclosure
protocol.
INTEGRITY, cont.
• Sec. 6411. Recovery Audit Contractor (RAC)
program extended to Medicaid.
• Sec. 6501. Termination of provider
participation under Medicaid if terminated
under Medicare or other State plan.
INTEGRITY, cont.
• Sec. 6502. Medicaid exclusion from
participation relating to certain ownership,
control, and management affiliations.
• Sec. 6601. Prohibition on false statements and
representations.
• Sec. 6604. Applicability of State law to
combat fraud and abuse.
New Fraud and Abuse Laws
A. PPACA Overpayment Reporting (Sections 6402(a) and 6506)
• affirmative obligation for any provider, supplier, Medicaid managed care
organization, MA organization, or PDP sponsor that has received an
overpayment to report and return the overpayment to the Secretary, state,
intermediary, carrier, or contractor along with a written notification of the
reason for the overpayment.
• deadline for reporting and returning such overpayments is the later of 60
days after identified or the date that any corresponding cost report is due.
• False Claims Act liability ALREADY EXISTS for knowingly concealing
or knowingly and improperly avoiding an “obligation” to pay money to the
government.
• overpayments retained beyond the deadline become actionable under the
False Claims Act.
B. MANDATORY COMPLIANCE PROGRAMS FOR ALL PROVIDERS
Hospice Investigations and Prosecutions
• Subjects for review
• Approaches of the investigators
• Others in the mix---MedPac; MediCal; MACs;
CMS; Congressional committees; ZPICs
[which are successors to PSCs]
Heightened Hospice Concerns- What
Practices Need Review?
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WHO
WHAT
WHEN
WHERE
WHY
HOW
HOW OFTEN
Heightened Concerns
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WHO- Are you admitting to care
WHAT- Are your referral relationships
WHEN- Are you performing assessments
WHERE- Are your patients residing
WHY- Are you hiring physicians
HOW- Are you ensuring quality of care
HOW OFTEN- Are you seeing patients
Hospice Expenditures*
• In 2008, more than 1 million Medicare
beneficiaries received hospice services
from more than 3,300 providers and
Medicare expenditures exceeded $11
billion.
*MedPac 2010
Challenges to Hospice Reimbursement
• MEDPAC recommendations to alter
reimbursement methodology and create
“ U-shaped curve“ with higher payment at
beginning and end/death; Congress includes
directive in Healthcare reform bill
· MEDPAC refers to ‘dark’ side of hospice
industry
Hospice Quality
Quality of care—
‘‘We do not have sufficient evidence to assess
quality, as information on quality of care is
very limited. Efforts completed or under way
might provide a pathway for further
development of quality measures’’.
*MedPac 2010 report
Health Reform Enacted
• After January 1, 2011, a hospice physician or nurse
practitioner must have a face-to-face encounter with
each hospice patient to determine continued eligibility
prior to the 180th-day recertification & thereafter.
• Attestation of visit
• HHS medical review of certain patients in hospices with
high percentages of long-stay patients.
Changes to Hospice Certification and Billing
Processes
• CR #6540 (re-issued on 12/23/09) includes the
requirements for the attending physician or Medical
Director to provide written explanation of basis of
terminality when certifying the terminal illness. But
if certification is verbal, this narrative is not required
until the first billing.
• CR # 6440 CMS seeking line-item services data, but
clarifies rounding up 0 to 14 minutes=1 unit and
allowing social work phone calls to be included in the
data.
ONE YEAR IN = Implementation of the New
Conditions of Participation
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42 CFR 418; Dec. 2008 and Feb. 2009
IDG [Interdisciplinary Group];
Medical Director;
Nursing Facility contracts when hospice
patient is a resident;
• Patient Rights
• Credentialing and Quality of Care
Where do the Compliance Risks Lie?
QUALITY FROM THE IDG
• RN IDG member must coordinate care and ensure
“continuous assessment” of patient and family needs
• IDG must “work together”, “provide the care” “meet
the needs” & reassess every 15 days
• Must have a “Super IDG” to set policies on day to
day care, if >1 IDG in the hospice
• IDG must document patient’s understanding,
involvement and agreement w care planning
Medical Directors
MEDICAL DIRECTORS
• If there is only one physician connected to the hospice, this
physician is “expected to provide direct patient care to each
patient.”
• Medical Director [MDir] provides “overall medical
leadership” in the hospice.
• Numerous physicians in the MDir role “would likely result in
inconsistent care and decreased accountability.”
• Certifications depend on information= review of DX, current
medical findings, meds and treatments 418.102 (a) and (b)
OIG is looking at Hospice/Nursing Facilities
Are Hospice COPs an addition to Kickback Concerns because
Quality of Care failures can be False Claims. COPs require
·
Legally binding, written arrangement
• Designated liaison for both providers
• Primacy of the hospice in care decisions — ”full
responsibility”
• Mandated strong communication and coordination — in
written terms 112(e)(3)
• Absent revised SNF regulations, however, how will it
“work”?
OIG White Paper on Corporate
Responsibility and Quality of Care
• Point Four=Is the Board orientation and ongoing
training inclusive of external quality and patient
safety information. Are there Board members with
expertise in these areas?
• Point Six= How are quality assessment and
improvement processes coordinated with the
compliance program of the company?
• Are quality and patient safety addressed in the
company’s risk assessment and corrective action
plans?
• Use oig.hhs.gov website to obtain this document
QAPI= Proof of Quality
• Formalized programs; strenuous work on
outcomes
• Governing Body responsibilities for oversight
• Intersection between quality, incident
reporting, risk management, compliance
program audits, staff training
DEA Laws a new Focus
• DEA has begun aggressive enforcement of
position that NF nurses are not ‘agent’ of
prescribing physicians. Pharmacies are
enforcement targets. Pain medications are not
being delivered timely to patients.
• Senator Kohl of Wisconsin held a ‘listening
session’ on this issue in late March. Hospice
patients at risk, too.
RACs come to Hospice
RAC REGION D ISSUES POSTED
• DME Services related to a Hospice terminal diagnosis
provided during a Hospice period are included in the
Hospice payment and are not paid separately.
• Services related to a Hospice terminal diagnosis
provided during a Hospice period are included in the
Hospice payment and are not paid separately.
Compliance Cases
• Kaiser Foundation Hospitals - Kaiser
Sunnyside Medical Center, Kaiser Foundation
Health Plan of the Northwest and Northwest
Permanente P.C., Physicians & Surgeons
agreed to pay $1,830,322.41 in False Claims
Act liability services billed w/o written
certifications of terminal illness in 2000-2004.
11/09
OIG 2010 Work Plan
• Hospice-Nursing Home relationships
• Physician billing and ? Double billing for
hospice patients by attending physicians and
hospices
• Trends in Hospice growth
• Part D duplicate billing- pharmaceuticals
OIG Reports for Hospice and Nursing
Facilities
• Sept. 2009 – OIG found 82 % of claims for
hospice/NF residents lacked one or more
coverage requirements; 31 % of cases provided
fewer services than the care plan called for
• Second OIG Report was statistical and gave
the intensity and frequency of NF-based
hospice care….suggesting CMS might want to
consider implications
Heightened Homecare Concerns
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WHO- Are you admitting to care
WHAT- Are your referral relationships
WHEN- Are you performing assessments
WHERE- Are your patients residing
WHY- Are you hiring physicians
HOW- Are you ensuring quality of care
HOW OFTEN- Are you seeing patients
Rise of Homecare Fraud Cases
• Flat out corruption –Fake visits, fake orders
• Kick-back referrals and Stark issues– Brokers;
corrupt physicians and discharge planners
• Un-credentialed staff
• Manipulated frail or elder consumer
• Bonus programs without safeguards
• False data on OASIS, records, responses to
ADRs
MedPac & CMS’s Looking at Home Health
Industry Behavior Yielded Results
• Obama: PPACA included significant cuts in
home health, with Congress “on board"
• Behind the scene maneuvers to cut the profit
from home health?
• Concern about ill-prepared or unscrupulous
new entrants into HHA field
• Restraints such as cutbacks on surveys;
declining to allow CHAP/JCAHO to qualify
for new HHA branch; Dec. 18/Jan 1st Freeze
MEDICAID fraud enforcement is a
competitive sport
• 1/28/10--Massachusetts Medicaid Fraud
Division Recovered Record $51.6 Million,
breaking the previous high mark by $4.7
million and setting a record for the third
consecutive year.
• Two large multistate litigations on off-label
and illegal marketing and three on improper
rebate or pricing programs.
• Interviews with Jim Sheehan in New York.
Iowa Medicaid Payments for Home
Health Agency
• http://www.oig.hhs.gov/oas/reports/region7/71
001081.pdf
Iowa improperly claimed $303,000 ($199,000
Federal share) for home health agency (HHA)
services provided by 190 HHA providers
Although the State agency had a process to
monitor some HHA claims on a postpayment
basis, and although Iowa enhanced this process
in January 2009,overpayments not prevented.
Risk Management and Privacy Law
• What steps to a better risk management
assessment process do you have in place
• What recognition of the practical requirements
of the new HIPAA laws on notice of breach of
privacy, on Business Associates, on security of
laptops/cell phones/PDAs
• How does your compliance program account
for the privacy and security realities
Faculty Contact Information
Deborah A. Randall, J.D.
Health Law Attorney and Consultant
Law Office of Deborah Randall
202-257-7073
law@deborahrandallconsulting.com
www.deborahrandallconsulting.com